Ontario Labour Relations Board
[1990] OLRB Rep. October 1031
2865-89-G The Ontario Allied Construction Trades Council, Applicant v. The Electrical Power Systems Construction Association, Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members D. A. MacDonald and P. V. Grasso.
APPEARANCES: John Moszynski for the applicant; John Saunders for the respondent.
DECISION OF THE BOARD; October 16, 1990
This grievance has been filed pursuant to section 124 of the Labour Relations Act. The grievor, Mr. Richards, alleges his lay-off violated the terms of the collective agreement between the Electrical Power Systems Construction Association ("EPSCA") and the Ontario Allied Construction Trades Council ("Council") under which he was covered. The respondent employer Ontario Hydro (which is bound to that collective agreement) asserts that this Board does not have "jurisdiction" to adjudicate upon this grievance because Mr. Richards was not covered by that collective agreement.
Before turning to the events which precipitated this grievance, and the evidence and the representations of the parties, we note that Ontario Hydro ("Hydro") has not in defence of this grievance raised any issue other than the applicability of the collective agreement to the grievor. The only issue before us is whether the grievor is covered by the agreement. Ontario Hydro conceded that if the collective agreement applied, Mr. Richards was laid off in violation of that collective agreement.
We note also that the issue before us is more appropriately characterized as an issue of "arbitrability" rather than "jurisdiction". Pursuant to section 124, we have the jurisdiction to hear grievances arising out of a collective agreement between a construction industry trade union and a construction industry employer as defined in section 117 of the Labour Relations Act (see Babcock and Wilcox Canada Ltd.,[1988] OLRB Rep. Dec. 1198). Here, Hydro concedes that it is bound to the collective agreement, but argues that it is not bound to apply the collective agreement to work which it asserts is not covered by the collective agreement. The question therefore is not whether we have jurisdiction to hear the grievance, but whether the subject matter or merits of the grievance is arbitrable. Sections 124(1) and 124(3) provide the Board with jurisdiction to determine that matter.
The Facts
Having heard and assessed the evidence of all of the witnesses we find the following facts to be relevant.
Mr. Richards commenced work with Hydro at the Darlington Nuclear Power Generating Station Project ("Darlington"). Mr. Richards is a member of the Labourers International Union of North America ("Labourers") and came to work at Hydro through the union hiring hall. There is no dispute that the Labourers are bound to the collective agreement between EPSCA and the Council ("the agreement"). On April 9, 1986, Mr. Richards suffered an industrial accident. He was off work and received Workers Compensation until March 15, 1987 at which time he returned to work at Darlington for Hydro as a night dispatcher. This job he considered to be a "light duty" job. There is no dispute that while employed in this capacity Mr. Richards was covered by the agreement and all the terms and conditions of that agreement were applied to him. It is also not disputed that the work of night dispatcher is Labourer's work covered by the Labourers Appendix to the master agreement. Mr. Richards continued in this job for three or four months until June or July of 1987 at which time he suffered a reoccurrence of his injury and went back on Workers Compensation.
Mr. Richards next returned to work on July 25, 1988. At that time he commenced work in the "pallet yard". In September 1988 Mr. Richards reinjured himself. He next returned to work for Hydro at Darlington in the pallet yard on January 3,1989 and worked there until January 25, 1989. Then he was on Workers Compensation again but returned to work in the pallet yard in August 1989. He continued in the pallet yard until he was laid off by Hydro on November 3, 1989.
The crux of the issue before us is whether the work performed by Mr. Richards in the pallet yard is work covered by the agreement. The Council submits it is. Hydro states it is not. It is therefore necessary to set out in some detail the work performed in the pallet yard and how this work fits in with Hydro's broad program to rehabilitate injured workers.
In an effort to provide useful and gainful employment to injured workers and thereby encourage injured workers to return to work, and in an effort to control its own Workers Compensation cost, Hydro has, over the years, established a comprehensive rehabilitation program. Initially, Hydro's efforts to accommodate an injured workers' return to the workforce was limited to a "light duty" program. Employees with work restrictions were returned to work as part of a regular construction crew. The employee would perform duties similar to other members of the crew but, because of an inability to perform the full range of duties due to his/her restrictions, the employee would generally be assigned to lighter duties performed by that crew. There is no dispute that this work is construction industry work covered by the agreement.
This "light duty" program was unable to accommodate all of the injured workers. Hydro soon expanded the rehabilitation program by having injured workers who were subject to work restrictions perform what it termed as "construction maintenance" on site. Persons with work restrictions were put in a crew that performed such "construction maintenance" work as the repair of door latches on site. This "construction maintenance" work was described as work which was not directly associated with the construction of the generating station, but was support work needed to "maintain" the facilities. In addition, some injured workers were assigned to scaffold inspection. Other injured workers (carpenters by trade) worked in the carpentry shop. Again it is not disputed that all of this work was construction industry work covered by the agreement.
As neither the light duty program nor the construction maintenance work program were sufficient to accommodate the return to work of all the injured workers, Hydro added another level to its rehabilitation program namely, the "pallet yard". Hydro maintains that its rehabilitation program is limited to the work at the pallet yard and that this program is separate and distinct from both its light duty and construction maintenance work program. Hydro submits that the work in the pallet yard is not construction industry work and is not covered by the agreement. It asserts that, unlike the light duty or construction maintenance work, the work in the pallet yard does not contribute to the construction project or work for the "bulk power system". Hydro argues that whereas the work performed by employees in the light duty and construction maintenance programs would have been performed in any event, the production of pallets was a "make work" project which would not normally have been performed by the construction trades on site.
The Labourers assert that the rehabilitation program is an all encompassing one and includes all three aspects of the program - the pallet yard, the light duty program and the construction maintenance crew. In this regard, counsel of the Labourers points to the evidence that there is an interchange between participants in each of the three levels. In addition, there is a natural progression as employees move from the pallet yard to one of the other levels as they become more fit or able to perform a wider range of duties. Counsel argued that as the rehabilitation program is an all encompassing one, Hydro cannot divide up that work to say that some of it (light duty and construction maintenance) is construction industry work covered by the agreement while another part of the rehabilitation program (the pallet yard) is not.
In our view, given the evidence that there is only a minimal or occasional interchange of employees (i.e. employees from the pallet yard occasionally work at light duties on site) and because only a few employees have "progressed" from the pallet yard to light duties we find that for purposes of these proceeding Hydro's rehabilitation program is limited to work at the pallet yard. The evidence shows that the grievor, Mr. Richards was, at all relevant times employed only in the pallet yard. He did not progress to either of the other two programs. His work was restricted to the pallet yard and while at the pallet yard he did not at any time do any of the work which Hydro concedes is construction industry work covered by the collective agreement such as the light duty work or the construction maintenance -work on site. Accordingly, we propose to determine only whether the work at the pallet yard is work covered by the agreement.
This then brings us to the work performed in the pallet yard. Originally the pallet yard was an outdoor facility located upon the Darlington site property but outside the fence which surrounds the power house and the construction site temporary buildings. At some point in time the outdoor facility was moved to a vacant building within the fenced portion of the Darlington powerhouse and the construction site temporary buildings.
In 1988 the only work performed in the pallet yard was the manufacture of pallets. In 1989 the work in the pallet yard consisted primarily of making pallets but also included certain other functions. Approximately, twenty-five percent of the work in the pallet yard in 1989 consisted of such other functions as untangling cables and removing cable clips from the cables, making a few (approximately six) picnic tables, making signs and road barriers used for an open house, putting batteries in flash lights which were then given out as safety awards, the construction of some winter hoarding, and the disassembly of panels. In respect of this latter function it would appear that this was also a "make work" project as Hydro would normally merely scrap the panels. On the occasions when panels were disassembled at the pallet yard however, the lumber was stacked and either recycled or scrapped. Finally, on occasion during 1989 employees from the pallet yard would perform light duties on site. These occasions appear to be rare. Mr. Richards was not one of the employees assigned to work on site on any occasion.
In the manufacture of wooden pallets, Hydro used a significant amount of surplus wood from the site. Rather than scrapping wood which had been used in the construction work on site, materials were salvaged and used in the pallet yard. Mr. John Grunau, the Manager of Safety -Design Construction Branch, and one of the persons ultimately responsible for the rehabilitation program testified that an agreement was negotiated with Ontario Hydro Supplies and Services Department whereby that department would purchase the pallets made at the pallet yard for $10.00 per pallet. It would appear that from a strictly economical point of view the operation of the pallet yard was not very successful. Although sold at ten dollars per pallet, the pallets were estimated to cost about $75.00 to produce. The economic viability of the pallet yard however was not the main or even a primary objective of the rehabilitation program. From all accounts, the pallet yard rehabilitation program was commenced from a "win-win" perspective - injured workers would be provided with an opportunity to return to useful, gainful employment and Hydro would be able to control a portion of its ever increasing workers compensation cost.
The pallets made at the pallet yard were generally transported via the Darlington site warehouse to Ontario Hydro's Supplies and Services main warehouse at Kipling Avenue in Toronto. From there they would be distributed throughout the province to Ontario Hydro sites and locations. Some of the pallets were used at the Darlington site.
Submissions of the Parties
- In their submissions counsel referred to the following provisions of the collective agreement:
Article 1
RECOGNITION
1.1 EPSCA recognizes the Council as the exclusive bargaining agency for a bargaining unit comprising employees as defined in Section 1.4 and foremen as defined in Section 1.5 engaged in all construction industry work* performed in the Province of Ontario Hydro property for the bulk power system, save and except the building of commercial-type office facilities at urban locations remote from operating facilities.
For the purpose of clarity, the bulk system comprises generating stations, hydraulic works, heavy water facilities, transmission lines (voltages over 50 kV), transmission stations, microwave and repeater stations.
* For the purpose of The Electrical Power Systems Construction Association, the work performed is deemed to be under the responsibility of the Generation Projects and Transmission Systems Division.
[emphasis added]
1.3 The Council recognizes EPSCA as the exclusive bargaining representative for all Employers in respect of work performed by their respective employees in the bargaining unit set forth in Section 1.1.
1.4 The term "employee" shall include all employees of the Employers in the classifications set out in the trade appendices provided in Article 4, Sections 4.1 and 4.2, save and except those described hereunder:
(a) Carpenters and Labourers employed by an Employer signatory to the National Agreement for Canada, Stacks-Chimneys-Silos, when performing work covered by the scope of that agreement; and
(b) Operating Engineers employed by an Employer signatory to the Crane and Equipment Rental Agreement with Local Union 793, when performing work covered by the scope of that agreement; and
The term "employee" includes foremen in Articles 13, 15, 16, 17, 18, 19, 20, 21, 22, 12, 24, 25. 26.1(b), 26.1(c) and 28.
Article 4
APPENDICES
4.1 The trade appendix applicable to each member Union of the Council will contain those provisions which are not common to all members Unions of the Council, and those provisions will apply to appropriate members of each International Union as provided in its appendix while they are working under the terms of this Collective Agreement. Such appendices shall be deemed to be part of this Agreement.
- Counsel also referred to section 1(1)(f) of the Act which states as follows:
"construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof;
Counsel for Hydro asserted that in order for Mr. Richards to be covered under the agreement he must meet the twofold test set out in Article 1. Mr. Richards must be an employee as defined in Article 1.4 of the agreement and he must have been "engaged in construction industry work performed ... for the bulk power system." Counsel submitted that the collective was unambiguous and Mr. Richards did not meet either of these two tests.
Counsel argued that through a combination of Article 1.4 and Article 4 it is clear that the collective agreement applies only to employees in classifications set out in the Labourers appendix "while they are working under the terms of the collective agreement". Thus, the collective agreement contemplates that there may be occasions when employees are not working under the terms of the collective agreement.
Counsel for Hydro pointed to the fact that Article 1 of the Labourers appendix to the master agreement entitled "Classifications" contained approximately 53 separate classifications "covered by this appendix". Although many of these classifications are very specific counsel noted that there was no classification for "pallet yard worker" or "pallet builder". Moreover, counsel stated that although Article 1.2 of the appendix specifies that "if additional classifications are required, they will be negotiated as appropriate for work in the electrical power systems sector" no such negotiations occurred in respect of a "pallet worker" classification. Counsel attributed this to the fact that the parties did not intend the new classification of pallet yard worker to be covered under the collective agreement. In the result it was argued that Mr. Richards was not an employee as defined in Article 1.4.
It was further submitted that Mr. Richards did not meet the second criteria contained in the recognition clause as he was not "engaged in construction industry work performed for the bulk power system". In this regard counsel referred in particular to the evidence of Mr. Grunau who testified that the manufacture of pallets was not construction work and did not contribute to the "bulk power system" as that term is used and defined in the recognition clause. Reference was also made to the definition of "construction industry" found in section 1(1)(f). It was submitted that the manufacture of pallets was not work included within that definition. Counsel therefore asserted that the union had not met the onus cast upon it to prove that Mr. Richards was covered by the unambiguous language of the collective agreement.
In the alternative counsel for Hydro argued that there was a latent ambiguity in the language of the collective agreement. That ambiguity could be resolved by extrinsic evidence which, he asserted, showed that the agreement did not apply, and was never intended by the parties to apply to persons working in the pallet yard.
Counsel pointed to a number of factors as relevant extrinsic evidence which the Board should consider in resolving the ambiguity. First, he noted the purpose of the program. Second, he referred to the fact that employees came to work at the pallet yard through recommendation of the Workers' Compensation Board and not through the application of seniority or the union hiring hall. Next counsel observed that the evidence indicated that Hydro did not expect the pallet yard employees to meet any productivity or attendance criteria and to this extent the collective agreement was not applied to persons working in the pallet yard. Counsel also referred to the fact that unlike other labourers on site, pallet yard employees worked only one shift rather than three shifts. They were also permitted to start and leave work five minutes ahead of the other employees. As a fifth factor counsel argued that the work in the pallet yard was geographically removed from the construction work face at Darlington as it was originally outside the fence which surrounds the Darlington power house. Even when the pallet yard was moved within that fenced area it continued to be physically removed from the work face.
Counsel further argued that in resolving the ambiguity the Board must consider the work actually performed in the pallet yard and how that work compares to the work which is performed by those construction labourers clearly covered by the agreement. Counsel asserted that the evidence disclosed that the manufacturing of pallets is not normally done by construction labourers on a construction site and is not generally perceived as being construction work. He again referred to section 1(1)(f) of the Act and argued that the manufacture of pallets did not fall within the statutory definition of "construction industry" work. Counsel emphasized that, except for the employees in the pallet yard, no other labourer (or any other employee) had ever built or manufactured pallets at Darlington. Indeed the evidence of the witnesses went even further and was to the effect that in their respective years working within the construction industry generally, or at Darlington in particular, they had not observed labourers constructing pallets on site. Counsel again pointed to the fact that the agreement did not contain a "pallet builder" classification although it contained 53 other classifications.
Counsel for the Labourers argued that the evidence disclosed that Hydro "understood and intended the collective agreement to apply" to pallet yard employees. Counsel submitted that in determining whether Mr. Richards was covered by the agreement while working in the pallet yard, the focus should not merely be on a narrow determination of whether or not the production of pallets was "construction" work or fell within the statutory definition of "construction industry" as found in section 1(1)(f) of the Act. Rather, he asserted that the pallet yard operation was an "integral part" of the personnel practice employed by Hydro in the operation of its construction industry business, namely, the construction of the Darlington nuclear plant. He argued that the rehabilitation programme at Darlington, including the pallet yard, was only a small part of Ontario Hydro's overall undertaking to construct Darlington. It was submitted that it would be unreasonable to sever this small part from the overall undertaking and find that this was not construction work.
Counsel also maintained that the work at the pallet yard fell within the responsibility of the "Generating Projects and Transmission Systems Division" (now called the Design and Construction Branch) at Hydro. That is the operating division of this employer which is recognized in the collective agreement to perform construction work. Thus Mr. Richards was employed by the division which Hydro agrees is engaged in the construction industry. He was not employed by a separate division with a distinct undertaking i.e.,to manufacture pallets. It was submitted that even if the manufacture of pallets did not fall within the statutory definition of "construction industry", the collective agreement between these parties had amended and enlarged that definition so that work performed by the Generating Projects and Transmission Systems Division was agreed to be construction industry work. That work must necessarily include the work performed by Mr. Richards an employee working at the construction site for that division.
Finally, counsel for the Labourers noted that the pallets were manufactured at the construction site and some were subsequently used on site. He asserted that the pallet yard employees were akin to on site shop employees.
The Decision
It is a well established rule of interpretation that where the words of a collective agreement are unambiguous they must be given their ordinary meaning without recourse to extrinsic evidence. Where the words on the face of the agreement are ambiguous it is said that a patent ambiguity exists and recourse to extrinsic evidence may be made to assist in interpreting the collective agreement.
At times the words on the face of the agreement are not ambiguous but application of those words to the facts is "doubtful" or "difficult". In those instances it is said that there is a latent ambiguity. Where an ambiguity is latent it is permissible to refer to extrinsic evidence to resolve the ambiguity. It is also well established that it is permissible to rely upon extrinsic evidence to disclose whether there is any latent ambiguity. As was stated by the Ontario Court of Appeal in Leitch Goldmines Limited et al. v. Texas Gulf Sulphur Company (Inc.) et. al. (1968) 1968 CanLII 405 (ON HCJ), 3 D.L.R. (3d) 161 at page 215-216:
The Court is not necessarily concerned only with the literal meaning of the language used but rather with its meaning in the light of the intentions of the signatories....
A transaction having been reduced to writing, extrinsic evidence is generally inadmissible to contradict, vary, add to or subtract from its terms. This is fundamental in the interpretation of written instruments. Parol evidence may, however, be admitted in aid of interpretation.
Where the language of the document and the incorporated manifestations of initial intention are clear on a consideration of the document alone and can be applied without difficulty to the facts of the case, it can be said that no patent ambiguity exists. In such a case, extrinsic evidence is not admissible to affect its interpretation. On the other hand, where the language is equivocal, or if unequivocal but its application to the facts is uncertain or difficult, a latent ambiguity is said to be present. The term "latent ambiguity" seems now to be applied generally to all cases of doubtful meaning or application.
Extrinsic evidence may be admitted to disclose a latent ambiguity, in either the language of the instrument or in its application to the facts, and also to resolve it, but it is to be noted that the evidence allowed in to clear up the ambiguity may be more extensive than that which reveals it. Thus, evidence of relevant surrounding circumstances can be accepted to ascertain the meaning of the document and may clarify the meaning by indirectly disclosing the intention of the parties.
If the surrounding circumstances, however, do not explain the latent ambiguity an equivocation is said to be established, in which event, in addition to evidence of circumstances, direct evidence of the parties' intentions may be received to resolve the equivocation.
(See also Noranda Metal Industries Limited, Ferguson Division and International Brotherhood of Electrical Workers, Local 2345 et. al. (1984) O.R. 2d. 529 (Ct. of Appeal); Re International Union, United Automobile, Aerospace and Agricultural Implement Workers, Local 1967 and McDonald Douglas Canada Limited, (1984) 1984 CanLII 2055 (ON HCJ), 47 O.R. 2d 78 (Ont. Divisional Court); The B rant County Board of Education, [19841 OLRB Rep. Oct. 1349.
In our view the words of the collective agreement are not ambiguous. The agreement on its face applies only to those employees of the employer in the classifications set out in the agreement who are engaged in construction industry work on Ontario Hydro property for the bulk power system.
The application of that language to the facts before us however is "uncertain or difficult" and discloses a latent ambiguity. It is "doubtful" (and certainly disputed) whether Mr. Richards was employed in the classification set out in the appendix, and it is "doubtful" (and certainly disputed) whether he was engaged in "construction work". The revelation of this latent ambiguity therefore permits us to refer to the extrinsic evidence to ascertain the meaning of the collective agreement and resolve the ambiguity.
Both counsel referred to section 1(1)(f) of the Act. It is not unusual for arbitrators interpreting collective agreements to look at the legislative context in which a collective agreement is set for assistance in determining the meaning of the words used in the agreement. The definitions of certain terms found in the statute may aid in interpreting those same terms where they are found in the agreement. The definitions found in statutes do not however automatically provide meaning to the words in the collective agreement.
It is important to recognize that in this instance the Board is adjudicating in its capacity as a board of arbitration under section 124 of the Act. Our role therefore is to hear and determine the difference between the parties to the collective agreement arising from the interpretation, application, administration or alleged violation of that collective agreement. The issue before us is not whether the work performed by Mr. Richards is work in the "construction industry" as that term is defined in the Act. Rather, the issue is whether the work which Mr. Richards was performing fell within the parameters of the collective agreement. As a result, although we have considered the statutory definition we find that it is but one of many factors to consider.
Was Mr. Richards an "employee" as that term is used in the agreement? We find that he was. Although there is no separate classification for "pallet manufacturer" or "pallet builder" contained in the Labourers', Appendix there is a separate classification entitled "labourer". In our view this classification is broad enough to encompass an employee performing the work Mr. Richards was performing in the pallet yard. In the circumstances of this case we find Mr. Richards to be an "employee" within the meaning of Article 1.3 and Article 4 of the agreement.
This then brings us to the issue of whether Mr. Richards was engaged in "construction industry work". That issue is much more difficult to resolve. On its face and without regard to any surrounding circumstances it is difficult to characterize the manufacture of pallets in a "production like" or "assembly line like" fashion as "construction industry" work if that is the only function carried out by the employees of the employer. On the other hand, if construction labourers on a construction site build some pallets for use on the site it is not difficult to characterize that work as construction industry work. One cannot therefore equivocally say that the building of pallets is or is not construction industry work.
We agree that the mere fact that some of the pallets produced in the pallet yard at Darlington were actually used on the construction site is not sufficient to resolve this matter. There are a myriad of items, tools or materials used on a construction site. If the fact that the ultimate products is used on a construction site or eventually becomes part of the construction project were the determinative criteria, there would be little if anything which would not be considered "construction work". Such a criteria would, for example, make the manufacturer of nails which were then used in constructing a structure "construction work".
Similarly, we also agree that the mere fact that an employee is employed by the construction industry division of the employer does not necessarily result in the finding that such an employee was engaged in construction industry work. One can readily envision a number of persons including, for example office staff, employed by a construction industry employer who are not engaged in construction industry work and/or who are not covered by the collective agreement which covers the construction employees. The fact that Mr. Richards was employed by the Generating Projects and Transmission Systems Division is therefore also not sufficient to resolve this matter. The fact that Mr. Richards performed this work at a construction site for a construction industry employer are two but certainly not the primary factors to consider.
The remainder of the evidence does assist us in ascertaining the meaning of the term "construction industry work" as used in the agreement. In our view the surrounding circumstances clarify the meaning of that term and show that the parties applied and intended to apply the agreement to persons employed in the pallet yard.
While employed at the pallet yard employees were treated in much the same manner as those construction labourers on site who were clearly covered by the collective agreement. Pallet yard employees were paid the same wages and had union dues deducted from their pay. Health, welfare and pension remittances were made on their behalf. Employees in the pallet yard were afforded union representation. They filed grievances which were dealt with in accordance with the grievance procedure set out in the agreement. A meeting of management and all pallet yard employees to discuss concerns relating to working conditions was arranged in consultation with on site union representatives. Both the Labourers' and the Carpenters' chief stewards attended that meeting.
In addition to these factors, it is apparent from the evidence before us that in the pallet yard Hydro attempted to observe the "trade" or work jurisdictions of the respective trade unions who together make up the Council as set out in the agreement. Thus carpenters normally performed those work functions over which their craft union claimed jurisdiction i.e. sawing and nailing wood, while labourers such as the grievor performed such typical labouring functions as "tending" carpenters by supplying them with materials or laying out their tools. Indeed, it was because the Carpenters' union expressed concern that in the pallet yard work within their trade jurisdiction was being performed by labourers that Mr. Richards (and certain other labourers) were laid off. The possibility of a jurisdictional dispute over work assignments in the pallet yard was one of the factors considered by Hydro in laying off certain labourers including Mr. Richards in November 1989. Consideration of the "work jurisdiction" clause in the agreement is another indicator that Hydro intended the agreement to cover pallet yard employees.
The only substantial areas where the collective agreement was apparently not applied to the pallet yard employees was with respect to their entry into the pallet yard and the matter of discipline for poor attendance or poor productivity. In our view however the fact that employees came to the pallet yard through the referral of the Workers' Compensation Board and not by way of seniority or the union hiring hall is less significant in light of the evidence that union dues were deducted from the employees and appropriate remittances for benefits were made to the union on their behalf. We find the fact that Hydro chose not to enforce the productivity and attendance standards which is normally expected of those non injured workers clearly covered by the collective agreement to be, at best, a neutral factor. The fact that Ontario Hydro waived its right to require employees to be fit and able does not show that it did not intend the agreement to apply to those employees.
Based on these various factors we are therefore of the view that the surrounding circumstances indirectly disclose the intention of the parties that the collective agreement does apply to pallet yard employees. That extrinsic evidence clarifies the latent ambiguity.
Finally we turn to the direct evidence of the parties' intentions. In his submissions counsel for Hydro referred to the lack of evidence from any representative of the Labourers with respect to the trade union's interpretation or understanding of the application of the collective agreement to pallet yard employees. In this regard counsel argued that the evidence of the representatives of Hydro indicated that Hydro intended the pallet yard to be outside the scope of the collective agreement and acted accordingly. It was argued that there was no evidence from any representative of the Labourers' union to contradict that evidence. Representatives of the union did not testify that their interpretation or intention was different than that of Hydro.
If the evidence of the witnesses who testified on behalf of Hydro had clearly or unequivocally established that the intention of Hydro was to exclude the pallet yard employees from the collective agreement there would have been much merit in this submission. In our view however even the direct evidence of the parties' intention tendered by the witnesses on behalf of Hydro was not so unequivocal. In cross-examination Mr. Verwoert, the general foreman responsible for the pallet yard employees at the relevant time admitted that in his duties he had always treated the pallet yard employees as if they were covered by the agreement stating "I did. I had nothing to believe they were not [covered by the agreement]." Mr. Grunau also stated that the pallet yard employees were "more or less" treated exactly as other employees on site and admitted that he had never turned his mind to the question as to whether such employees were covered by the agreement. That evidence is inconsistent with an assertion that Hydro intended the employees to be beyond the coverage of the agreement.
We therefore do not view as fatal the failure of the trade union to call one of its representatives to testify that the union's understanding and intent was that pallet yard employees be covered by the collective agreement. The equivocal evidence of Hydro's witnesses was refuted by the evidence of such surrounding circumstances as a deduction (and remittance) of union dues and the fact that the union otherwise represented pallet yard employees. The fact that the union represented pallet yard employees at meetings with management and in grievances filed, and the fact that the union accepted dues on behalf of these employees is sufficient evidence that it intended the collective agreement to apply to such employees. That direct evidence of the union's intent prevails over the equivocal evidence with respect to Ontario Hydro's intentions.
For all of these reasons we find that at the time of his layoff Mr. Richards was covered by the collective agreement. Ontario Hydro has conceded that he was laid off in violation of that agreement. The grievance is therefore allowed. The parties indicated that in the event the grievance was allowed they may be able to resolve the issue of remedy. We will remain seized in the event the parties are unable to resolve that matter. At this stage we make no order as to the appropriate remedy.